1 Or. 183 | Or. | 1855
Biley sued the “ Falls Company ” for work and labor done upon their buildings, and obtained a judgment by default, in the District Court, for the sum of $779 30, and a lien therefor on said buildings.
Among various other objections made to the proceedings of the court below, it is contended, in the first place, that the notice in the summons is insufficient to entitle Biley to the judgment in this case. Section 27, page 68, of the Statutes of Oregon, is as follows: “ There also shall be inserted in the summons a notice, in substance as follows: In an action arising on contract, for-money, or damages only, that the plaintiff will take -judgment for a sum specified therein, if the defendant fail to answer the complaint.
In other actions, that “ if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief demanded therein.” The motion in this case is, “ that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint.” This notice, it is
Sec. Sé,page 74, Statutes of Oregon, provides, “ that in the absence of the party the pleadings may be verified by any person having a knowledge of the facts; and when the affidavit shall be made by any other person than the party, he shall set forth in it his knowledge, or the grounds of his belief, on the subject.” Now, the promissory note referred to is a mere promise to pay for value received, and evidence, therefore, of nothing but indebtedness, so that as to the other allegations in the complaint, upon which the right of lien depends, the attorney professes to have no knowledge or grounds of belief.' Those averments, then, showing the existence of a lien, are in effect not verified at all, so that the court below adjudged to the plaintiff there a specific lien upon the buildings of the defendant, with no other evidence before it except the unverified statements of said plaintiff’s attorney.
Plaintiffs in error have urged, with great earnestness, that Biley acquired no lien for his work and labor upon their buildings, and therefore the judgment of the District Court should be reversed. They argue that Biley commenced work in June, 1858, under a contract of that date, and continued so to work until the 10th of September, 1854; that on the first of May, 1854, the statute of 1851, under which said contract was made, was repealed without any saving clause, and that by virtue of such repeal, the growing, but not then perfect right of lien, was destroyed, and that no lien was obtained under the act of 1854, for that only applies to work done after its passage. When Biley commenced labor upon the buildings of said company, the law, to secure the payment of his wages, gave him a lien therefor upon said buildings, and required him, within sixty days from their completion, to file a notice of his intention to hold such lien ; but before said buildings were completed, the law was repealed, and another enacted at the same time, which allowed him three months in which to file, and in which he did file, said notice. Now, as one statute ceased to exist, and the other was created uno flalu, we think that the act of 1854 may be regarded as a continuation of the act of 1851, so that the laborer may have that security for his hire which the law promised when he commenced work; the labor, in question, must be regarded as an entirety, and the rights of the party to the whole job be determined in accordance with the law in force at the time the contract was made, or in accordance with the law in force at the time the work was finished. Assuming that the parties are to be treated as though the work was performed on the day when it was completed, and beyond question there was a lien acquired under the act of 1854; but
Plaintiff avers in his complaint that he “ filed, &c., a notice of his intention to hold a lien against the said buildings,” and does not show that any amount of indebtedness is specified in such notice. Section two of the act concerning liens, page 149, Statutes of Oregon, provides, that persons wishing to avail themselves of the provisions of that act, shall file a notice of their intentions to hold a lien upon the buildings for the amount due or to become due, specifically setting forth such amount, “ so that the notice described in the complaint was not such an one as the statute required, and, for not setting forth any amount, was obviously insufficient.” Notice must be alleged in the complaint; (5th Blackford's R. page. 329 ; 8th Ib. 252;) and, of course, if it is necessary to show that a notice was filed, it is necessary to show that it was a legal notice, and in some way designated the amount for which, and the premises upon which the lien is claimed. The objection made to the claim upon this ground must be sustained. Our attention has been directed by the argument to the question, as to whether a mechanic’s lien relates to the time when he commenced woik, or to the commencement of the building. Section seven of the chapter on liens, page 150, Statutes of Oregon, enacts that “the liens created in pursuance of the provisions of this chapter shall have precedence over all other liens after the commencement of the building.” This language, taken in its ordinary acceptation, as it ought to be, admits of no doubt; but, independent of any express provision, we understand the legislation upon the subject to imply, as a general rule, (subject, doubtless, to
Plaintiffs in error are right in respect to this point. Sec
Judgment is reversed.